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Child Protection Law in Canada

"Children are entitled to be protected from abuse, neglect and harm or threat of harm."

S. 2 BC’s child protection legislation.

From province to province in Canada, the law in process of child protection varies on points of detail.

However, nomenclature and time-frames notwithstanding (for example, some jurisdictions do not use the words child protection, instead, they prefer the words child welfare), there are several themes current throughout otherwise disparate systems.

Natural parents of the child, in the absence of an agreement or court order to the contrary, generally have full rights over their child. Jurisdictions differ as to what word is used to refer to this but it is commonly known as custody, guardianship or both and soon, parental rights.

When the government intervenes and takes a child away from a parent (in law, this is called apprehension, no pun intended), they extract, with the quick confirmation of the Court, all or most of those rights from the natural parent(s). Lawyers representing the child protection ministry will refer to that status, in court, as having "custody pursuant to the (insert name of relevant child protection statute here)".

Canada's Criminal Code has several provisions which prohibits certain contacts dangerous to a child. Amongst those offenses is the catchall § 215:

"Every one is under a legal duty as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of sixteen years, to provide necessaries of life to their spouse or common-law partner, and to provide necessaries of life to a person under his charge if that person is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and is unable to provide himself with necessaries of life."

But child protection proceedings are not criminal in nature. They are civil proceedings which means that the standard of proof is a balance of probability.

In addition, the common law created and gave the courts something called "inherent jurisdiction" over children in danger, a jurisdiction and area of the law known as parens patriae. It is still alive and kicking but rarely used today given the presence of comprehensive child protection legislation in every Canadian jurisdiction.

Child protection or child welfare orders, where they exist, supersede the regular custody or guardianship orders issued under divorce or provincial family law legislation. Conversely, if a child protection custody order is vacated, the legal rights fall back onto whoever would have those rights pursuant to divorce or provincial family law legislation.

It is not always at the government's initiative that a child protection custody order comes into existence. Sometimes, a parent knows that he or she is in over his or her head and a child is voluntarily handed over to the government.

One would think that the provinces could get their act together and develop harmonized legislation, as they seem to have been able to do with inter-jurisdictional child support. But that is not presently the case.

The British Columbia legislation provides a detailed framework for intervention, similar to the standard set out in the Ontario legislation, and with a very similar definition of a child in harm's way:

A child is deemed to need protection in the following circumstances:

• If the child has been, or is likely to be, physically harmed or sexually abused by neglect, directly by the parent or by another person and the child's parent is unwilling or unable to protect the child;

• If the child is emotionally harmed by the parent's conduct (a child is emotionally harmed if the child demonstrates severe anxiety, depression, withdrawal, or self-destructive or aggressive behaviour);

• If the child is deprived of necessaryhealth care or the child's development is likely to be seriously impaired by a treatable condition and the child's parent refuses to provide or consent to treatment;

• If the child's parent is unable or unwilling to care forthe child and has not made adequate provision for the child's care;

• If the child is or has been absent from home in circumstances that endanger the child's safety or well-being;

• If the child's parent is dead or if the child has been abandoned, and adequate provision has not been made for the child's care; or

• If the child is in the care of a director or another person by agreement and the child's parent is unwilling or unable to resume care when the agreement is no longer in force.

Apparently, in BC anyway, this list is not exhaustive (BS v British Columbia)!

Real-life examples of behaviour resulting in a parent losing their child to child protection custody include alcoholism, destructive or dysfunctional relationships with new partners, and unexplained injuries.

A common feature of child protection legislation is to require everybody in the Province to report any child needing protection. Typically, the legislation will protect the identity and civil liability of the disclosing party but otherwise makes it an offence to not report. It is one of those rare areas where Good Samaritanism is mandatory.

According to the Government of BC, here are some examples of situations justifying a report:

A school teacher notices that a child has bruises or other injuries and neither the child or the child’s family can’t explain these injuries;

A child discloses that he/she’s being sexually abused; or

A person notices that a child is often sick and unclean, falls asleep too much and is left at home alone.

"A director may, without a court order, remove a child if the director has reasonable grounds to believe that the child needs protection and that the child's health or safety is in immediate danger, or no other less disruptive measure that is available is adequate to protect the child."

The British Columbia system has peculiar feature, based upon the enabling legislation, personifying the government's intervention in child protection matters by referring to the Director, who is in fact a senior public servant almost never involved in individual cases, and who never actually shows up in court. Reference to the Director, while formal and proper, really means the child protection office or social worker in charge of the file.

In fact, when the child is removed, the child is usually placed with another family member, if available, or a foster home retained by the Director.

If a child is apprehended, there is a court hearing required in short order. In British Colombia, this is called a presentation hearing. At this hearing, the social worker sets out the facts of apprehension and provides a plan. The court will make an interim decision.

Much of the angst over child protection is focused on the presentation hearing because the threshold for custody by the Director is ridiculously low, given what is at stake. The process, by design, defers the parent's essential and comprehensive challenge of the evidence to a later hearing (the protection hearing). It seems wrong to surrender a substantial interruption in the child's life to such a summary process.

Both the Director and the court may consider a supervision order, which can return the child to the parents subject to the Director’s terms and conditions. Sometimes, the Director will come to agreement with the parents as to what should happen next. On occasion, mediation or judge-presided conferencing will be scheduled but for a parent who has unjustifiably lost the care of their child, setting their mind to compromise or negotiating can be a very difficult thing.

It must be so deeply devastating for a parent, on a much larger scale than it is for their caring lawyer, to find out that their child will remain with a stranger while false suspicion or anonymous allegations of abuse are investigated.

After the presentation hearing, assuming that the Court has endorsed the Director’s opinion that the child is in need of protection, a more substantial hearing is scheduled, called a protection hearing.

Once thus engaged in a cycle of protection hearings, a child can remain in the custody of the Director until the age of majority. Eventually, litigation fatigue will set in. The process is very complex and has its own lingo, making it even more remote for the distraught parent. Combined with a few bills for legal services, attrition will affect even the most well-intentioned parent.

The good news is that in the vast majority of cases, apprehension decisions are not made lightly and are, in any event, subjected to be thorough and careful analysis of an interested and unbiased judge.

All lawyers who have had contact with child welfare or protection files know that the office of social worker in child protection proceedings is a very difficult and thankless job. Opportunities for error and misjudgment are frequent. In one egregious example, the Canadian Press reported on June 17, 2008 that one Ontario Children's Aid Society investigation was initiated on the basis of a psychic's comment to a child's teacher.1

Areas exposed to the potential for arbitrary intervention include the use of corporal punishment, exposure to alcohol, and any assessment which is necessarily based, in whole or in part, on the worker's socio-economic standing or bias, or sheer stupidity.

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Unless otherwise noted, this article was written by Lloyd Duhaime, Barrister, Solicitor, Attorney and Lawyer (and Notary Public!). It is not intended to be legal advice and you would be foolhardy to rely on it in respect to any specific situation you or an acquaintance may be facing. In addition, the law changes rapidly and sometimes with little notice so from time to time, an article may not be up to date. Therefore, this is merely legal information designed to educate the reader. If you have a real situation, this information will serve as a good springboard to get legal advice from a lawyer.